Authored By : Mitter, Trevelyan

Mitter and Trevelyan, JJ.

1. The Magistrate in this case, following the decision inAmbler v. PushongILR Cal. 365, has maintained the second party in possessionof, a piece of forest land. It appears not to be disputed that the right ofpossession upon the forest lands in question is exercised by cutting timberfrom time to time, and removing that timber, upon a certain price being paidtherefor. It further appears that in Falgun last year (or March 1888), a numberof trees was cut in the forest by labourers who had authority to do so eitherfrom the first party or the second party. It also appears that there was adisturbance of the peace consequent upon attempts being made by the partiesrespectively to remove the timber. The result was that on the 7th of June last,a lessee of the second party was bound down to keep the peace, and, on the 9thJune, the present proceedings were instituted between the parties, the lesseenot being made a party to these proceedings. All that the Magistrate finds inthis case is this. He says: "It appears from the evidence of the witnessesproduced by the first party that they were driven away by the men of the secondparty, and have been unable to enter the forest and remove the timber whichthey alleged to have been cut by them. This happened before the time of theinitial proceedings, and that state of things still continues. Further, itappears that the men of the second party have been able to bring out the timberwhich was cut, with the exception of a few trees, which were cut, as isalleged, by a man who has since died." Upon these two facts being found,the Magistrate came to the conclusion that the possession of the second partywas established when these proceedings were instituted. Having regard to thenature of the property in dispute, these two facts, found in favour of thesecond party, could not constitute legal possession of the second party at the timethe proceedings were instituted. The first party is entitled to assume that onthe occasion preceding the one in which the dispute arose, his man were allowedto cut and remove timber in the forest without any disturbance of peace. Thereis evidence adduced by him on this point which has not been disbelieved by theDeputy Magistrate. He is, therefore, entitled to say that for the purposes ofthe question of law which has been raised before us, and for that purpose only,this fact should be assumed in his favour. If this contention be conceded, itseems to us to follow that what happened in March last could not have theeffect of putting the first party out of possession; they would only be actsdisturbing the possession of the first party. Having regard to the nature ofthe property in dispute, and the mode in which possession may be exercised overthe property, we think that in order to find which party was in possession whenthe proceedings were instituted, it is necessary to enquire which party was inthe undisturbed possession of the land in dispute by felling timber andremoving the same without objection on the occasion immediately preceding theone in which the dispute arose; and whichever party be found to have been inpossession on that occasion, should be presumed to have possession at the timewhen the proceedings in this case commenced.

2. We desire to guard ourselves from being understood toexpress any opinion on the question of possession-that question is left to bedecided by the Joint Magistrate. We simply make the assumption of fact, whichthe first party contended should be made, in order to decide whether thefinding of the Joint Magistrate is sufficient in law to dispose of the case.

3. We set aside the order of the Joint Magistrate, and remitthe record of the case to him, in order that it may be decided, on the evidencenow on the record, with reference to the observations made above.

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Jagat Kishore Acharjya Chowdhuri vs. Ashanullah Khan Bahadur (13.02.1889 - CALHC)